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Charkowski v. Berryhill

United States District Court, D. Massachusetts

March 22, 2017

BRIAN L. CHARKOWSKI, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Defendant.

          OPINION AND ORDER

          George A. O'Toole, Jr. United States District Judge

         The plaintiff, Brian L. Charkowski, appeals the denial of his application for Social Security Disability Benefits (“DIB”) by the Commissioner of Social Security (“Commissioner”). Before the Court are Charkowski's Motion to Reverse the Decision of the Commissioner (dkt. no. 16) and the Commissioner's Motion to Affirm the Commissioner's Decision (dkt. no. 20). After consideration of the administrative record and the parties' memoranda, the Court now affirms the Commissioner's decision because there is substantial evidence in the administrative record to support the decision and no error of law was made.

         I. Procedural History

         Charkowski applied for DIB on January 3, 2012, alleging disability beginning January 3, 2012. (Administrative Tr. at 187-95, 221 [hereinafter R.]).[2] Charkowski's application was initially denied on September 18, 2012, (id. at 75-86), and again upon reconsideration on January 10, 2013. (Id. at 87-101.) Charkowski requested a hearing, (id. at 109-10), which was held before Administrative Law Judge Henry J. Hogan on March 4, 2014. (Id. at 41-74.) On March 28, 2014, the ALJ issued an unfavorable decision, stating that Charkowski could perform his past relevant work as a greeter based on his residual functional capacity (“RFC”). (Id. at 9-34.) Accordingly, the ALJ found that Charkowski was “not disabled” pursuant to the Social Security Act. (Id. at 33.) On July 15, 2015, the Appeals Council denied Charkowski's request for review. (Id. at 1-6.) This denial rendered the ALJ's decision the final decision of the Commissioner, and made the case suitable for review by this Court pursuant to 42 U.S.C. § 405(g).

         II. Discussion

         An individual may seek judicial review of a final decision by the Commissioner within sixty days of the decision. 42 U.S.C. § 405(g). Judicial review is restricted “to determining whether the ALJ used the proper legal standards and found facts upon the proper quantum of evidence.” Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000); accord Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001). Upon review, a court will uphold the ALJ's decision when it is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is considered “more than a mere scintilla” and exists when there is sufficient relevant evidence that “a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Thus, a Commissioner's decision is affirmed “even if the record arguably could justify a different conclusion, ” Rodriguez Pagan v. Sec'y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (citing Lizotte v. Sec'y of Health & Human Servs., 654 F.2d 127, 128 (1st Cir. 1981)), for “factual inferences, credibility determinations, and resolutions of conflicts in the evidence are reserved to the Commissioner.” Conte v. McMahon, 472 F.Supp.2d 39, 46 (D. Mass. 2007) (citing Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991)). Further, the ALJ may rely upon findings and opinions of multiple physicians to ascertain medical facts. Evangelista v. Sec'y of Health & Human Servs., 826 F.2d 136, 144 (1st Cir. 1987).

         Charkowski argues the ALJ decision should be overturned both for lack of substantial evidence to support the decision and for legal error. Specifically, Charkowski argues the ALJ erred by: (1) determining that Charkowski had a residual functional capacity (“RFC”) that was inconsistent with the findings and conclusions expressed by reviewing Disability Determination Services (“DDS”) physicians; (2) failing to comply with SSR 00-4p at step four; and (3) relying on vocational expert (“VE”) Diane Durr's testimony to contravene the Grids.

         The full and extensive administrative record is filed on the docket of this case, as is the lengthy written decision of the ALJ. There is no reason to rehearse the details of Charkowski's medical history or of the DIB application process except as is necessary to discuss the specific objections made to the Commissioner's decision.

         A. Substantial Evidence Supports the ALJ's Evaluation of Charkowski's Physical RFC

          i. Substantial Evidence Supports the ALJ's Decision to Adopt Portions of the DDS Physicians' Assessments of Charkowski's RFC

         Charkowski alleges that the ALJ erred in rejecting the opinions of the DDS physicians, Drs. Barbara Trockman and Jane Matthews, who found Charkowski limited to sedentary work.[3] (R. at 81-82, 95-96.) The ALJ assessed Charkowski with the RFC to perform light work with several limitations. (Id. at 14.) To make that determination, the ALJ afforded “partial and great weight” to Dr. Trockman's assessment of Charkowski's RFC at the initial stage and Dr. Matthews' assessment on reconsideration, as well as “evidence at [the] hearing level, including the fact that the claimant was returned to light work by [nurse practitioner (“NP”) Veronica] Coutu in July 2012, and reports by Dr. Medeiros that the claimant can lift up to 20 pounds.” (Id. at 30.)

         Charkowski is correct in stating that DDS examiners are highly qualified experts in Social Security disability evaluations. However, an ALJ must consider the record as a whole when determining a claimant's RFC; even a treating physician's opinion is discounted if “inconsistent with the other substantial evidence in [the] case record.”[4] 20 C.F.R. § 404.1527(c)(2). It is the prerogative of the ALJ to assess a claimant's RFC. Id. §§ 404.1527(e)(2), 404.1546(c). The ALJ must evaluate each medical opinion in the record, regardless of the source. Id. § 404.1527(c). The ALJ may weigh one opinion more heavily than another. Id. To decide how much weight to assign an opinion, the ALJ must consider: (1) the examining relationship between the claimant and the source; (2) the treatment relationship between the claimant and the source (including length of treatment relationship, frequency of examination, and the nature and extent of the treatment relationship); (3) the evidentiary support for the opinion; (4) the opinion's consistency with the entire record; (5) the specialization of the source; and (6) other factors the claimant or others raise. Id. § 404.1527(c)(1)-(6).

         The ALJ determined that the DDS examiners' assessments of Charkowski's physical RFC which limited him to sedentary work were inconsistent with the medical record as a whole. First, as the Commissioner rightly points out, the DDS physicians did not have the opportunity to review NP Coutu's July 11th note releasing Charkowski to light duty, nor Dr. Medeiros's assessment that Charkowski was able to lift up to twenty pounds occasionally. (R. at 76-78, 88-92; Mem. of Law in Supp. of Def.'s Mot. to Affirm the Commissioner's Decision 13-14 (dkt. no. 21).) The ALJ is entitled to draw inferences from the record evidence. Johnson ex rel. M.C.J. v. Astrue, No. 11-11243-JLT, 2012 WL 1605984, at *7 (D. Mass. Apr. 12, 2012), adopted by, 2012 WL 1605982 (D. Mass. May 7, 2012). The ALJ may have inferred that the DDS examiners' assessments would have been different if they had known those additional facts.

         Moreover, there was in the record substantial evidence to support the ALJ's determination that Charkowski possessed the RFC to perform light work, albeit with several limitations. Charkowski's self-reported range of daily activities in both Social Security Function Reports are generally inconsistent with limitations of sedentary work. (R. at 279-88.) At the hearing before the ALJ, Charkowski testified that he was able to cook, shop for groceries, drive his car, perform light housekeeping, and lift ten to fifteen pounds. (Id. at 52-54, 57-61.) His testimony in these respects was consistent with Dr. Trockman's notation in the “RFC - Additional Explanation” section that Charkowski had “independent ADLs, [5] meals, chores, drives, shops.” (Id. at 82.) It is also worth noting that while both DDS examiners limited Charkowski to sedentary work, they also found him not disabled, and capable of performing his previous work as a greeter as actually performed. (Id. at 84, 98-99.)

         Although the ALJ's determination might not have been the only conclusion which could have been reached, “the resolution of conflicts in the evidence is for the Secretary, not the courts, ” Ortiz, 955 F.2d at 769 (citing Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)), and accordingly, “[w]here the facts permit diverse inferences, we will affirm the Secretary so long as the inferences drawn are supported by evidence.”[6] Baez Velez v. Sec'y of Health & Human Servs., 993 F.2d 1530, at *7 (1st Cir. 1993) (per curiam) (unpublished table decision) (citing Rodriguez Pagan, 819 F.2d at 3).

         ii. Substantial Evidence Supports the ALJ's Decision to Rely on the Findings of NP Coutu and Dr. Medeiros

         Charkowski next objects that the ALJ erred in relying on the findings of NP Coutu and Dr. Medeiros because they are not “acceptable medical sources.”[7] He is right that they do not fall within the definition of “acceptable medical sources” because NP Coutu is a nurse practitioner and Dr. Medeiros is a chiropractor. See 20 C.F.R. § 404.1513(a). However, as previously stated, an ALJ must consider all evidence in a claimant's record, which includes objective medical evidence, opinions from medical sources, and opinions from “other sources.”[8]Id. §§ 404.1513(d), 404.1527(c). “[D]epending on the particular facts in a case, and after applying the factors for weighing opinion evidence, an opinion from a medical source who is not an ...


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